Limitation for filing written statement in commercial suit: What Delhi HC held

The Delhi High Court has held that period of limitation for filing a written statement in a commercial suit starts from the first service and not subsequent service dates if the bailiff’s report indicates successful service on the first occasion itself..The order was passed by a Single Judge Bench of Justice Mukta Gupta in an appeal against an order passed by the Joint Registrar, closing the right of the appellant to file its written statement in a commercial suit..The appellant who was one of the defendants in a suit claimed that a notice was served to him on August 22, 2017, at Kolkata which requested it to appear before the Court on August 24, 2017..When the counsel for appellant appeared before the Joint Registrar, it was submitted that the paper book was not available with him as it was in Kolkata and thus time was granted to file the written statement..After the paper book was received, the counsel for the appellant wrote a letter dated September 19, 2017, revealing that a few pages therein were missing and thus requested learned counsel for the plaintiff to complete the missing documents..Needful in this regard was admittedly done on October 27, 2017..The written statement was finally filed on January 30, 2018, with explanation for the delay in filing the written statement beyond 30 days on receipt of the complete paper but within 120 days..In the application seeking condonation of delay, the appellant stated that after the receipt of the complete paper book, comments were sought from the officials for preparation of written statement and in this regard meetings were held at Kolkata on November 15-16, 2017 and January 16, 2018..Finally, after receiving proper comments by e-mail on January 19, 2018, a written statement was prepared filed after a delay of 64 days..The plaintiff in the suit contended that the appellant did not object nor asked for the complete paper book when he appeared before the learned Joint Registrar on August 24, 2017. The request was made only on September 19, 2017, after spending a substantial period of time..It was further contended that a valid service of notice had been affected on the appellant on June 16, 2017, and the same would be deemed to be with complete documents as no objection to the same was made on the first occasion..The plaintiff thus stated that the extended period of 120 days for filing the written statement from June 17, 2017, was over much before January 30, 2018..The Appellant argued that it was never served on June 16, 2017, in spite of the bailiff’s report stating so..The Appellant claimed that although he was served only on August 27, 2017, the period of limitation would start from the day the complete paper book was supplied i.e. October 27, 2017..After hearing the parties, the Court recorded that the application seeking condonation of delay was completely silent on the first service..However, on perusal of the record it was evident that the appellant was served on June 16, 2017, by ordinary service through the bailiff, it said..The Court also took note of a judgment of the High Court stating that the leave to defend starts from the first service when services from both the modes are mandated, and not from the second service..Applying it to the present case, the Court thus opined that the appellant’s grievance with respect to incomplete paper book arose only on the second service through speed post. However, there was no material on record to come to the conclusion that the first service was affected by an incomplete paper book of the suit..It thus held that the period of limitation began from the date of the first service on June 16, 2017..It thus stated,.“Considering the fact that the written statement filed by defendant No.3 (appellant) was beyond the period of 120 days from the date of the first service i.e. 16th June 2017, even excluding the period from 19th September, 2017 to 27th September, 2017 this Court finds no error in the impugned order of the learned Joint Registrar.”.The appeal was accordingly dismissed..The plaintiff was represented by Advocate Shilpi Chowdhary, Jasdeep Singh Dhillon..The appellant was represented by Advocate Madan Gera..Read the order: